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Exhibit
10.15
WAIVER AND AMENDMENT
NO. 1 TO PURCHASE AGREEMENT
THIS WAIVER AND AMENDMENT
NO. 1 (this “ Amendments ”) is dated as of
September 11, 2003 (the “ Amendment Effective Date
”) to the Purchase Agreement dated as of June 3, 1999 (the
“ Purchase Agreements ”) by and among JAC
Holdings International, Inc. (for-merry known as Rabbit Hill
Holdings, Inc.); a Delaware corporation (the “ Company
”) and Caravelle Investment Fund, L.L.C. (“
Caravelle ”), Hancock Mezzanine Partners L.P. (“
Hancock ”) and John Hancock Life Insurance Company
(formerly known as John Hancock Mutual Life Insurance Company)
(“ JHMLIC ” and each of Caravelle, Hancock and
JHMLIC a “ Purchaser ” and, collectively, the
“ Purchasers ”). Unless otherwise provided
herein, capitalized terms used but not defined hereto shall have
the meanings ascribed to such terms in the Purchase
Agreement.
RECITALS
WHEREAS, the Company and the
Purchasers have entered into a Purchase Agreement relating to the
issuance by the Company of, among other things, $25.0 million in
aggregate principal amount of its 15% Senior Notes due 2006
(together with any PIK Notes, the “ Notes
”);
WHEREAS, the Subsidiaries of
the Company will enter into a $20.0 million revolving credit
facility (the “ Revolving Facility ”), dated the
date hereof, by and among Johnstown America Corporation, a Delaware
corporation, Freight Car Services, Inc., a Delaware corporation,
JAC Operations, Inc. a Delaware corporation, and JAIX Leasing
Company, a Delaware corporation (each a “ Co-Borrower
”, and collectively, the “ Borrowers ”),
and LaSalle Bank National Association (“ LaSalle
”) and guaranteed by the guarantors named therein;
WHEREAS, the Subsidiaries of
the Company anticipate entering into a $9.0 million term loan
facility (the “ Proposed Term Loan Agreement ”),
within 45 days of the date hereof, by and among the Borrowers and
General Electric Capital Corporation (“ GE ”)
and guaranteed by the guarantors named therein;
WHEREAS, at the request of
LaSalle and GE, the Company and the Purchasers desire to amend
certain terms of the Purchase Agreement;
WHEREAS, the Company and the
Purchasers have agreed upon the terms and conditions referred to
below;
NOW, THEREFORE, in
consideration of the recitals and covenants set forth herein, and
other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Company and the
Purchasers agree as follows:
1. Amendment to
Purchase Agreement . Unless specifically defined or
redefined in this Section 1, capitalized terms used in this Section
1 shall have the meanings ascribed thereto in the Purchase
Agreement Upon the date hereof, the Purchase Agreement and each
outstanding Note is hereby amended as follows:
1.1. Section 1 is amended (a)
to amend and restate in their entirety, the following
definitions:
“ Change of
Control ” means any event, circumstance or occurrence
that results in (a) John E. Carroll, Jr. (i) ceasing to be Chairman
and CEO of the Co-Borrowers or (ii) not being the owner of at least
six percent (6%) of all issued and outstanding capital stock of the
Company entitled to vote or otherwise not having operating control
of the Co-Borrowers; (b) Caravelle not being the owner of at least
twenty percent (20%) of all issued and outstanding capital stock of
the Company entitled to vote or otherwise not having operating
control of the Co-Borrowers; (c) Hancock and JHMLIC, together, not
being the owners of at least eighteen percent (18%) of all issued
and outstanding Capital stock of the Company entitled to vote or
otherwise not having operating control of the Co-Borrowers, (d)
Santomero Investors, not being the owner of at least eighteen
percent (18%) of all issued and outstanding capital stock of the
Company entitled to vote or otherwise not having operating control
of the Co-Borrowers; or (e) Transportation Investment Partners,
L.L.C. not being the owner of at least thirteen percent (13%) of
all issued and outstanding capital stock of JAC Holdings entitled
to vote or otherwise not having operating control of the
Co-Borrowers; provided, however, that as long as Caravelle,
Hancock, JHMLIC, Santomero Investors, and Transportation Investment
Partners, L.L.C. collectively retain at least fifty percent (50%)
of the capital stock of the Company entitled to vote which such
entities held as of the Amendment Effective Date, then no Change of
Control shall occur as a result of any transfer of capital stock
among those Persons who own capital stock of the Company as of the
Amendment Effective Date.
“ Credit
Agreement ” means the Revolving Facility and the Proposed
Term Loan Agreement, including any related notes, guarantees,
collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified,
restated, renewed, refunded, replaced or refinanced from time to
time.
“ JAII Subordination
Agreement ” means the Subordination Agreement among the
Purchasers, the Company, Caravelle, Transportation Investment
Partners, L.L.C. and Camillo D. Santomero III, relating to the
Contingent Additional Consideration (as defined in the Share
Purchase Agreement).
“ Subordination
Agreements ” means, collectively, the JAII Subordination
Agreement and the New Subordination Agreements.
and (b) to add the following
definitions:
“ Amendment
Effective Date ” means September 11, 2003.
“ Borrowers
” means, collectively, each of the Co-Borrowers.
“ Co-Borrowers
” means each of Johnstown America Corporation, a Delaware
corporation, Freight Car Services, Inc., a Delaware corporation,
JAC Operations, Inc. a Delaware corporation, and JAIX Leasing
Company, a Delaware corporation.
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“ Company
” means JAC Holdings International, Inc. (formerly known as
Rabbit Hill Holdings, Inc.), a Delaware corporation.
“ GE ”
means General Electric Capital Corporation.
“ GE Subordination
Agreement ” means the Subordination Agreement to be
entered into in connection with the Proposed Term Loan Agreement,
among GE, the Company, the Purchasers, Camillo M. Santomero III,
James D. Cirar and Transportation Investment Partners, L.L.C. and
acknowledged by the Borrowers, JAC Intermedco and JAC Patent, as
the same may be amended from time to time.
“ JAC Intermedco
” means JAC Intermedco, Inc., a Delaware
corporation.
“ LaSalle
” means LaSalle Bank National Association,
“ LaSalle
Subordination Agreement ” means the Subordination
Agreement dated as of the Amendment Effective Date, among LaSalle,
the Company, the Purchasers, Camillo M. Santomero III, James D.
Cirar and Transportation Investment Partners, L.L.C. and
acknowledged by the Borrowers, JAC Intermedco and JAC Patent, in
the form of Exhibit D hereto, as the same may be amended
from time to time.
“ New Subordination
Agreements ” means, together, the GE Subordination
Agreement and the LaSalle Subordination Agreement.
“ Proposed Term Loan
Agreement ” means the $9.0 million term loan credit
facility which the Borrowers anticipate executing with General
Electric Capital Corporation and guaranteed by the Company, JAC
Intermedco and JAC Patent, including any related notes, guarantees,
collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified,
restated, renewed, refunded, replaced or refinanced from time to
time.
“ Revolving
Facility ” means the $20.0 million revolving credit
facility, dated September 11, 2003, by and among the Borrowers and
LaSalle Bank National Association and guaranteed by the Company,
JAC Intermedco and JAC Patent, including any related notes,
guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended,
modified, restated, renewed, refunded, replaced or refinanced from
time to time.
1.2. Section 7.14 is amended
to amend and restate such section in its entirety to read as
follows:
7.14 Financial
Covenants . Notwithstanding Section 1 hereof, capitalized terms
used in this Section 7.14 shall have the meanings ascribed thereto
in the Revolving Facility (as in effect on the Amendment Effective
Date) and the financial covenants contained in this Section 7.14
shall be calculated in manner consistent with the Revolving
Facility (as in effect on the Amendment Effective Date).
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(a) Money Borrowed to
EBITDA . As of each Covenant Computation Date, the Co-Borrowers
shall maintain the Leverage Ratio of the Consolidated Group at not
more than 2.85 to 1.00.
(b) Fixed Charge
Coverage . As of each Covenant Computation Date, the
Co-Borrowers shall maintain the Fixed Charge Coverage Ratio of the
Consolidated Group at not less than 1.05 to 1.00.
(c) Interest Coverage
. As of each Covenant Computation Date, the Co-Borrowers shall
maintain, the Interest Coverage Ratio of the Consolidated Group at
not less than 3.5 to 1.00.
(d) Minimum EBITDA .
As of each Covenant Computation Date, the Co-Borrowers shall
achieve minimum EBITDA ( plus expenses and/or settlement
costs, without duplication, of up to $5,000,000 in the aggregate
related to the Pending Employment Litigation) for the Consolidated
Group of not less than $6,500,000.
Notwithstanding that the
Revolving Facility may be terminated or amended, modified, revised,
assigned or refinanced from time to time, capitalized terms used in
this Section 7.14 shall have the meanings ascribed thereto in the
Revolving Facility and the financial covenants contained in this
Section 7.14 shall be calculated in manner consistent with the
Revolving Facility, in each case, as the Revolving Facility is in
effect on the Amendment Effective Date.
1.3. Section 7.15 is amended
to amend and restate such section in its entirety to read as
follows:
7.15 Redemption of Notes
from Excess Cash Flow . Commencing with the Fiscal Year ending
December 31,2003, the Company shall: (i) to the fullest extent
required under any Credit Agreement, use “Excess Cash
FlowR
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